Allowed

Chandresh v. State of Chhattisgarh

Chhattisgarh HC21 Aug 2024CRA/1396/2018

Case brief

AI extract

What is this about?

This criminal appeal challenged a life imprisonment conviction under Section 302/34 IPC. The High Court allowed the appeal, acquitting the appellants. The Court held the trial court erred in relying on the Section 174 CrPC inquiry report as substantive evidence and incorrectly invoked Section 106 of the Evidence Act. Applying the parity principle due to the acquittal of co-accused, the Court quash

What did the court decide?

Impugned judgment convicted and sentenced to life imprisonment set aside; appellants acquitted of offences under Section 302/34 IPC; directed release from jail.

Chandresh Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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2024:CGHC:31957-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1396 of 2018

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(Arising out of judgment dated 06.08.2018 passed in Sessions Trial No.134/2017 by learned 1^st Additional Sessions Judge, Raigarh, CG)

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1. Chandresh S/o Hari Bareth Aged About 20 Years R/o Village Bade Hardi, P.S. Pushore, District - Raigarh, Chhattisgarh.

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2. Smt. Yashoda Bareth W/o Hari Bareth Aged About 48 Years R/o Village Bade Hardi, P.S. Pushore, District - Raigarh, Chhattisgarh.

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... Appellants

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versus

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State Of Chhattisgarh Through The Police Station Pushore, District - Raigarh, Chhattisgarh.

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... Respondent

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For Appellants : Mr. Sourabh Dangi, Advocate For Respondent/State : Mr. Sharad Mishra, Panel Lawyer

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Digitally signed by BHOLA Hon'ble Shri Justice Sanjay K. Agrawal NATH KHATAI Hon'ble Shri Justice Sanjay Kumar Jaiswal Date: 2024.08.27 16:53:49 Judgment on Board +0530

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Judgment on Board (22.08.2024 )

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Sanjay K. Agrawal, J.

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1 . This criminal appeal has been preferred under Section

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374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 06.08.2018, passed by learned 1^st Additional Sessions Judge, Raigarh (C.G.) in Sessions Trial No.134/2017, whereby the two appellants herein have been convicted for offence punishable under Section 302/34 of IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs.500/- each, in default of payment of fine, to undergo one year additional imprisonment.

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2 . The case of prosecution, in short, is that on 27.06.2017 at about 7 to 7:30 a.m. in village Bade Hardi, Police Station Pushore, District – Raigarh, the two appellants herein along with acquitted co-accused Sukesh & Hari Bareth, in furtherance of their common intention, ill-treated Janki Bai (now deceased) i.e. the wife of acquitted co-accused Sukesh due to which she died unnatural death on 27.06.2017, thereby committed the aforesaid offence. The matter was reported to the Police by acquitted co-accused Hari Bareth i.e. the father-in-law of the deceased pursuant to which Merg Intimation was recorded vide Ex.P-7 and FIR was registered vide Ex.P-15. Inquest proceedings were conducted vide Ex.P-4 and the dead body was sent for postmortem examination which was conducted by Dr. Rajani Naik (PW-9) vide Ex.P-6 in which the cause of death was opined to be hypovolemic shock due to burn. After completion of investigation, the accused persons were charge-sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court for trial and its disposal in accordance with law.

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3 . During the course of trial, in order to bring home the

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offence, the prosecution examined as many as 14 witnesses and exhibited 16 documents and two Articles A-1 & A-2. The statements of accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the accused persons in support of their defence have not examined any witness but have exhibited 4 documents.

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4 . After conclusion of trial, learned trial Court, on appreciation of the oral and documentary evidence available on record, convicted and sentenced the two appellants herein who are the brother-in-law and mother-in-law of the deceased as mentioned in the opening para of this judgment against which the present appeal has been jointly preferred by the appellants questioning the impugned judgment of conviction and order of sentence. However, the trial Court, vide the impugned judgment, has acquitted co-accused Sukesh & Hari Bareth, who are the husband and father-in-law of the deceased, of the charges levelled against them.

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5 . Mr. Sourabh Dangi, learned counsel for the appellants would submit that the trial Court relied upon the Merg Intimation (Ex.P-7) recorded under Section 174 of CrPC and held that the two appellants were in the house whereas the Merg Intimation (Ex.P-7) is not a substantive piece of evidence. He would submit that the circumstance of the two appellants having in the house on the date and time offence was not put to the appellants in their statement recorded under Section 313 CrPC. He would further submit that Bhagwat Prasad Yadav (PW-10) has stated that while recording Merg Intimation under Section 174 of CrPC it was

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clearly stated by Hari Bareth that on the date and time of offence the deceased was alone in the house and all other family members had gone out for work, as such the presence of the appellants has not been established to invoke Section 106 of the Evidence Act. He further submits that on the same set of evidence two co-accused Sukesh & Hari Bareth, who are the husband and father-in-law of the deceased, have already been acquitted by the trial Court, therefore, the case of the present appellants being on similar footing, they too deserve acquittal. Hence, prays for allowing of this appeal.

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6 . Mr. Sharad Mishra, learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and therefore, the conviction of appellants for offence under Section 302/34 of I.P.C. is well merited, as such, the appeal deserves to be dismissed.

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7 . We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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8 . In the instant case, there is no direct evidence available on record. The case of prosecution is solely based on circumstantial evidence. The five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: -

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1 (1984) 4 SCC 116

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra² where the following observations were made:

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Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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2 (1973) 2 SCC 793

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9 . Now, we consider the circumstances recorded by the trial Court in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). The first and foremost circumstance for consideration is whether the death of deceased Janki Bai was homicidal in nature?

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10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-6 proved by Dr. Rajani Naik (PW-9) and the circumstantial evidences brought on record that the death of the deceased was homicidal in nature, which is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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11. The Trial Court, while acquitting co-accused Sukesh & Hari Bareth who are the husband and father-in-law of the deceased, has come to the conclusion on the basis of Merg Intimation (Ex.P-7) recorded under 174 of CrPC that these two appellants were in the house where deceased Janki Bai was found dead in burnt condition and invoking Section 106 of the Evidence Act proceeded to convict these two appellants under Section 302/34 of IPC.

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12. However, careful perusal of Merg Intimation (Ex.P-7) recorded at the instance of Hari Bareth i.e. acquitted coaccused would show that it is the appellant No.1 Chandresh who informed acquitted co-accused Hari Bareth that some incident had taken place in the house and on being enquired, he informed that deceased Janki Bai was lying in burnt condition in her room. On that basis Merg Intimation (Ex.P-7) under Section 174 CrPC was recorded which has

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also been proved by Bhagwat Prasad Yadav (PW-10) who has stated that Merg Intimation (Ex.P-7) was registered at the instance of Hari Bareth who informed at the police station that at the time of incident, deceased Janki Bai was alone in the house and all other family members had gone out for work.

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13. Section 174 of Cr.P.C. states as under:

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Police to enquire and report on suicide, etc. (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted.

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14. The Supreme Court in the matter of Pedda Narayana nd Others v. State of Andhra Pradesh reported in 1975 4

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SCC 153 considered the nature and purpose of report under Section 174 of Cr.P.C. and held that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174 and held in Para 11 as under

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“ 11. A perusal of this provision would clearly show that the object or the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to bow the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows "The learned Sessions Judge bad also stated that the details regarding the weapons armed by each of the accused and which accused had attacked on which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witness now, found recorded under Section 174 Cr. P.C. could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column 11 (a) shows that Al to A3, A4 and A5 with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove' away the jeep and death was the result of the injuries inflicted. The object of holding any inquest as can be seen from under Section 174 Cr.P.C. is to find whether a person died a

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natural death, or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at the inquest did not contain those overt-acts and the statements now produced are those of the witnesses which were taken later.”

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15. The contents of the inquest report cannot be treated as evidence but can be looked into to test veracity of witness/witnesses as rendered in the decision of the Supreme Court in the matter of Kuldip Singh v. State of Punjab report in 1992 Supp 3 SCC 1.

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16. Similarly, in the matter of Yogesh Singh v. Mahabeer Singh and Others reported in 2017 11 SCC 195, it has been held that the inquest report is not a substantive piece of evidence and it can be looked into for testing the veracity of witness of the inquest and has held in Para 41 as under:

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Further, the evidentiary value of the inquest report prepared under Section 174 of Cr.P.C. has also been long settled through a series of judicial pronouncements of this Court. It is well-established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted.

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17. Bearing in mind the principles of law laid down by their Lordships of Supreme Court in the aforesaid judgments and the ambit and scope of Section 174 of Cr.P.C., it is quite vivid that the Merg Intimation Ex.P/7 is not a substantive piece of evidence. The finding of the Trial Court holding and accepting the Merg Intimation (Ex.P7) as a substantive piece of evidence to base a finding that the two appellants were present in the house on the date and time of offence, in our considered opinion is a finding recorded by the Trial Court contrary to the law, more particularly when Bhagwat Prasad Yadav (PW-10) has clearly stated that the Merg Intimation was registered at the instance of Hari Bareth who had informed that the deceased was alone in the house and all other family members had gone out for work. Furthermore, no question has been put to the appellants regarding their presence in the house with the deceased on date and time of offence while recording their statements under Section 313 CrPC nor has any explanation been sought as to how and what circumstances deceased Janki Bai died in the house.

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18. Now the question would be, whether the learned trial Court has rightly invoked Section 106 of the IE Act, for which, it would be appropriate to notice the principle governing the applicability of Section 106 of IE Act.

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19. At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which states as under:-

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“106. Burden of proving fact especially within knowledge. —When any fact is espe-

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cially within the knowledge of any person, the burden of proving that fact is upon him. ”

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20. The said provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned.

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21. In the matter of Murlidhar v. State of Rajasthan³ , their Lordships of the Supreme Court have held that since the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and therefore, the principle in Section 106 of the Evidence Act could not apply and observed as under:-

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“22 . In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammad Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are “especially within the knowledge of the accused” and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, “especially within the knowledge of the accused”. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the

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3 AIR 2005 SC 2345

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principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye-witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eyewitness. Testimony of Ram Ratan (PW-7) and Isro (PW-10) shows that their agricultural land was situated in a close distance from the house of Khema Ram.

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22. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal.

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23. In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the assailants was within the knowledge of witnesses, utterly failed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification. We are, therefore, of the view that the conviction of Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram under Section 364, IPC is justified and liable to be confirmed, but their conviction under Section 302/34, IPC cannot be sustained and they are liable to be acquitted of the said charges. ”

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23. Recently, in the matter of Balvir Singh v. State of Uttarak-

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hand4 , their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence

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4 2023 SCC OnLine SC 1261

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Act, have held that Section 106 has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under:-

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“41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act.

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42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

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43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the

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accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:

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“All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.”

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44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528—“require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958.

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45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took

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place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself:see Section 106 of the Indian Evidence Act, illustrations (a) and (b).

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46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution.

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WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE

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ACT?

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47. The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties.

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48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death. ”

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24. Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above judgments, from the evidence available on record it is quite vivid that in the present case, there is no direct evidence available on record that on the date and time of offence the two appellants were in the house where the deceased was found in burnt condition. Merg Intimation Ex.P-7 was recorded at the instance of acquitted co-accused Hari Bareth, in which he has stated that on the date and time of offence, the deceased was alone at home and all

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other family members had gone out for work. Bhagwat Prasad Yadav (PW-10) who has proved Merg Intimation (Ex.P-7) has also stated that Hari Bareth had informed the Police that the deceased was alone in the house and other family members had gone out for work. The trial Court, relying upon the Merg Intimation (Ex.P-7) recorded under Section 174 of Cr.P.C. and taking it as incriminating piece of evidence, has invoked Section 106 of the Evidence Act. However, as has been held in the preceding paragraphs, the Merg Intimation recorded under Section 174 of CrPC is not a substantive piece of evidence and based on which the two appellants can not be convicted for the offence under Section 302 of IPC. Hence, we are of the opinion that the prosecution has failed to discharge its burden of proving the applicability of Section 106 of the Evidence Act and as such the trial Court is absolutely unjustified in invoking Section 106 of the Indian Evidence Act.

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25. There is one additional ground that on similar set of facts, vide impugned judgment dated 06.08.2018, two co-accused Sukesh & Hari Bareth i.e. husband & father-in-law of the deceased have already been acquitted by the trial Court. In this regard, Hon’ble Supreme Court in the matter of Javed Shaukat Ali Qureshi v. State of Gujarat⁵ held that in similar or identical evidence against two accused, the Court cannot convict one accused and acquit other and in Paragraphs 15, 17 & 19 observed as under:

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“15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit

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5 (2023) 9 SCC 164

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the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination.

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Accused nos. 1,5 and 13 were convicted only on the basis of the testimony of PW-25 and PW-26. They were 3 (2003) 11 SCC 241 acquitted by holding that the testimony of both witnesses was unreliable and deserved to be discarded. If the same relief is not extended to accused nos. 3 and 4 by reason of parity, it will amount to violation of fundamental rights guaranteed to accused nos. 3 and 4 by Article 21 of the Constitution of India. Therefore, we have no manner of doubt that the benefit which is granted to accused nos. 1,5 and 13 deserves to be extended to accused nos.3 and 4, who did not challenge the judgment of the High Court. In this case, the suo motu exercise of powers under Article 136 is warranted as it is a question of the liberty of the said two accused guaranteed by Article 21 of the Constitution.

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We have found that the case of accused no 2 stands on the same footing as accused nos. 1,5 and 13 acquitted by this Court. The accused no.2 must get the benefit of parity. The principles laid down in the case of Harbans Singh4 will apply. If we fail to grant relief to accused no 2, the rights guaranteed to accused no. 2 under Article 21 of the Constitution of India will be violated. It will amount to doing manifest injustice. In fact, as a Constitutional Court entrusted with the duty of upholding fundamental rights guaranteed under the Constitution, it is our duty and obligation to extend the same relief to accused no.2. Therefore, we will have to recall the order passed in the special leave petition filed by accused no.2.”

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26. In the light of the aforesaid judgment of the Supreme Court, from the evidence available on record, we are of the opinion that the case of the two appellants herein also

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stands on the same footing as the acquitted two coaccused Hari Bareth and Sukesh.

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27. In that view of the matter, we find that as per the principle of ‘Panchsheel’ given by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of evidences are not so complete in which both the appellants can be held guilty for the incident. Consequently, we are unable to uphold the conviction of the appellants for offence under Section 302/34 of IPC and both the appellants are entitled for acquittal on the basis of the principle of the benefit of doubt.

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28. Accordingly, the impugned judgment dated 06.08.2018 passed by the Trial Court convicting and sentencing the appellants for the offence under Sections 302/34 of IPC is hereby set aside/quashed on the ground of benefit of doubt and the two appellants are acquitted from the said offence. Since the appellants are reported to be in jail since 28.07.2017, we direct that they be released from jail forthwith, if not required in any other offence.

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29. Accordingly, this Criminal Appeal is allowed.

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30. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where they lodged and suffering jail sentence, for information and necessary action, if any.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Khatai

Chandresh v. State of Chhattisgarh

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Chandresh v. State of Chhattisgarh

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